92 Decision Citation: BVA 92-22296
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 9l-l9 852 ) DATE
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THE ISSUES
l. Entitlement to service connection for a bilateral hip
disorder.
2. Entitlement to service connection for a disorder
manifested by anosmia.
3. Entitlement to service connection for chronic sinusitis.
4. Entitlement to an increased evaluation for degenerative
arthritis of the lumbosacral spine, currently evaluated as
l0 percent disabling.
5. Entitlement to an increased (compensable) evaluation for
gastritis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. A. Booher, Counsel
INTRODUCTION
The veteran had active duty from November l965 to October
l968, and from September l970 to October l986.
This appeal is taken from the rating action by the Department
of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas,
in May l988. A notice of disagreement was recorded in May
l988; a statement of the case was issued in September l988;
and a substantive appeal was filed in October l988. The
veteran testified at a personal hearing in December l988.
The prior decisions were confirmed and service connection was
also denied for other disabilities including hypertension and
a left hip disability described as myofibrositis. After
clarification of some of the issues on appeal, additional
adjudicative actions were taken. The case was forwarded to
and placed on the docket by the Board of Veterans' Appeals
(the Board) in August l989.
A VA Form ll9, dated January 25, l990, shows that the veteran
had contacted the RO and requested a personal hearing; in
April l990 the case was remanded administratively for that
purpose. In April l990, the veteran also filed a claim for
sinusitis, and after RO denial in April l990, the veteran
filed a notice of disagreement in June l990. The veteran's
anosmia and sinusitis have been considered both individually
and as a single entity by the RO; to afford the veteran the
benefit of all possible consideration, the Board will review
these separately at this time.
The issue raised in October l990 regarding Agent Orange has
not been developed for appellate review, and is not
inextricably intertwined with the certified issues. It is
referred to the RO for appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
It is contended that the RO erred in denying service
connection for sinusitis, anosmia and hip disability, and in
denying increased evaluations for gastritis and the
lumbosacral spine disorder.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7l04 (West
l991), following review and consideration of all evidence and
material of record in the claims file, and for the reasons
and bases herein set forth, it is the decision of the Board
that the preponderance of the evidence is against the
veteran's claim for service connection for a bilateral hip
disorder, anosmia and sinusitis, and for an increased
evaluation for degenerative arthritis of the lumbosacral
spine, and that the preponderance of the evidence is in favor
of a compensable evaluation for gastritis.
FINDINGS OF FACT
l. All relevant available evidence necessary for an
equitable disposition of the instant appeal is of record.
2. Service connection has been granted for degenerative
arthritis of the lumbosacral spine; the veteran does not
manifest a separate hip disorder.
4. On one occasion in service, after complaining of
headaches, X-rays showed sinusitis; this was acute and
transitory and resolved without residuals.
5. Chronic sinusitis is not now demonstrated.
6. The veteran has had inservice and post-service complaints
of anosmia; after extensive testing, no organic basis for
this partial lack of smell has been identified.
7. The veteran's gastritis is chronic and symptomatic; there
is no showing of ulceration or evidence of erosion or
inflammation on gastrointestinal X-ray series.
8. The veteran has X-ray evidence of mild degenerative
changes in the lumbar spine and sacrum; he does not have more
than slight limitation of motion of the lumbar spine.
9. The veteran's lumbosacral spine disorder is not unusual,
does not interfere with employment and does not require
frequent hospitalizations.
CONCLUSIONS OF LAW
l. A bilateral hip disorder was not incurred in or
aggravated by service. 38 U.S.C.A. §§ lll0, ll3l, 5l07(a)
(West l991).
2. A disorder manifested by anosmia was not incurred in or
aggravated by service. 38 U.S.C.A. §§ lll0, ll3l, 5l07(a).
3. Chronic sinusitis was not incurred in or aggravated by
service. 38 U.S.C.A. §§ lll0, ll3l, 5l07(a); 38 C.F.R.
§ 3.303(b)(d) (l99l).
4. An evaluation in excess of l0 percent for degenerative
arthritis of the lumbosacral spine is not warranted.
38 U.S.C.A. §§ ll55, 5l07(a); 38 C.F.R. § 3.32l(b), Part 4,
§ 4.7, Code 5003-5292 (l99l).
5. An evaluation of 10 percent for gastritis is warranted.
38 U.S.C.A. §§ ll55, 5l07(a); 38 C.F.R. Part 4, § 4.7, Code
7307.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board finds that the veteran's claim is well-grounded
within the meaning of 38 U.S.C.A. § 5l07(a); that is, it is
not implausible. We also find that the facts relevant to the
issues on appeal have been properly and adequately developed
and that the statutory obligation of the VA to assist the
veteran in the development of his claim has been satisfied.
38 U.S.C.A. § 5l07(a).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ lll0, 1131.
HIPS
The veteran has claimed that he developed a hip disorder in
service. A review of service medical records showed some
complaints that include the general area of his hips along
with complaints referable to other joints including the lower
back and sacral areas, but no separate hip disorder, as such,
was ever demonstrated. The degenerative changes that are
encompassed in the grant of service connection for his lumbar
and sacral spine disorder include some minimal changes in the
sacroilic joints. This may be that to which the veteran
refers when he says he has been told he has hip arthritis,
although the sacroiliac joints are not his "hips". X-rays
show no arthritis of his hips. Absent objective clinical
findings of any organic hip disorder, including arthritis,
service connection is not warranted. Id.
For the showing of chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." Continuity of symptomatology is required where
the condition noted during service is not, in fact, shown to
be chronic or where the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b). With chronic disease shown as such in
service (or within an applicable presumptive period) so as to
permit a finding of service connection, subsequent
manifestations of the same chronic disease at any later date,
however remote, are service-connected, unless clearly
attributable to intercurrent causes. 38 C.F.R.
§ 3.303(b). Service connection may be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
ANOSMIA
In service, the veteran had periodic complaints of problems
involving an alleged inability to smell various substances.
Testing was undertaken, without success, to try to determine
a definitive cause for these complaints. On one occasion, it
was thought that the problem might be sinusitis; he had
complained of headaches, and X-rays showed the presence of
sinus inflammation. This was not confirmed, however, to have
caused the anosmia, and in fact, there were complaints of
problems smelling various substances long after the acute and
transitory episode of sinusitis. However, in service and
since, there has been no other objective verfication of an
organic basis for his complaints of anosmia. In the absence
of an identifiable residual of an injury as a disease entity
for which service connection may be granted, the benefit must
remain denied. 38 U.S.C.A. §§ lll0, ll3l.
SINUSITIS
As for the veteran's claim of sinusitis, except for an
isolated acute and transitory incident in service when X-rays
showed some sinus clouding, there has been no objective
evidence of sinusitis as a chronic disorder in or since
service. Postservice findings have been negative for chronic
sinusitis, and service connection must be denied for
sinusitis as having been incurred in or aggravated by
service. 38 U.S.C.A. §§ lll0, ll3l; 38 C.F.R. § 3.303(b)(d).
LUMBOSACRAL SPINE
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.
Degenerative arthritis established by X-ray findings will be
rated on the basis of limitation of motion under the
appropriate diagnostic codes for the specific joint or joints
involved. 38 C.F.R. Part 4, Code 5003. Slight limitation of
motion of the lumbar segment of the spine warrants a 10
percent evaluation. A 20 percent evaluation requires
moderate limitation of motion. 38 C.F.R. Part 4, Code 5292.
There is X-ray evidence of mild degenerative changes in the
lumbar spine and sacrum. VA examination in January 1991
revealed slight limitation of motion of the lumbar spine.
Pertinent outpatient treatment records do not show a greater
degree of limitation of motion. Accordingly, an evaluation
in excess of l0 percent is not warranted. 38 U.S.C.A.
§ ll55; 38 C.F.R. Part 4, Code 5003-5292.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7. In the case of an increased
evaluation for lumbosacral spine disorder, the symptoms do
not more nearly approximate the higher criteria.
Accordingly, a higher rating is not warranted thereunder. Id.
In exceptional cases where the schedular evaluations are
found to be inadequate, an extraschedular evaluation
commensurate with the average earning capacity impairment due
exclusively to the service-connected disabilities may be
approved provided the case presents such an exceptional or
unusual disability picture with such related factors as
marked interference with employment or frequent periods of
hospitalization as to render impractical the application of
the regular schedular standards. 38 C.F.R. § 3.32l(b). In
this case, the veteran's lumbosacral spine disorder is not
unusual or exceptional; it is not shown to cause marked
interference with his work or require frequent
hospitalizations as to warrant consideration on an
extraschedular basis. Id.
GASTRITIS
A 10 percent evaluation is warranted for chronic hypertrophic
gastritis, identified by gastroscope, with small nodular
lesions and symptoms. A 30 percent evaluation requires
multiple small eroded or ulcerated areas and symptoms.
38 C.F.R. Part 4, Code 7307. Although an upper
gastrointestinal X-ray series in 1991 was negative, VA
outpatient treatment records for the period from February
l989 to August l990 show that the veteran has had continued
gastric complaints, described by such terms as gastritis,
gastric pain, "heartburn", mild epigastric discomfort and
possible peptic ulcer disease. The records also show that
the veteran uses antacids. Since the disorder is chronic and
symptomatic, the Board is of the opinion that the
manifestations of the disorder more nearly approximate the
requirements for an evaluation of l0 percent, as opposed to a
noncompensable evaluation. 38 U.S.C.A. § ll55; 38 C.F.R.
Part 4, § 4.7, Code 7307.
ORDER
Service connection for a bilateral hip disorder, a disorder
manifested by anosmia, and chronic sinusitis is denied.
An increased evaluation for degenerative arthritis of the
lumbosacral spine is denied. An evaluation of l0 percent for
gastritis is granted, subject to the applicable regulations
governing the payment of monetary benefits.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
WILLIAM J. REDDY
PHILIP E. WRIGHT
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.